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NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VALENTINA P. FOKINA, 

Plaintiff-Appellant, 

 v. 

NANCY A. BERRYHILL, Acting 

Commissioner of Social Security, 

Defendant-Appellee.

No. 17-35858

D.C. No. 2:16-cv-01279-RAJ

MEMORANDUM*

Appeal from the United States District Court

for the Western District of Washington

Richard A. Jones, District Judge, Presiding

Argued and Submitted October 10, 2018

Seattle, Washington

Before: BLACK,** PAEZ, and BEA, Circuit Judges.

Valentina Fokina appeals the district court’s order affirming the 

determination that Fokina was ineligible to receive Supplemental Security Income 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Susan H. Black, United States Circuit Judge for the 

U.S. Court of Appeals for the Eleventh Circuit, sitting by designation.

FILED

DEC 24 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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(SSI) benefits due to her possession of excess resources, over the limit that are 

allowed SSI benefit recipients. We have jurisdiction under 28 U.S.C. § 1291, and 

we review de novo. Ghanim v. Colvin, 763 F.3d 1154, 1159 (9th Cir. 2014). We 

affirm.

1. Substantial evidence supports the determination that Fokina’s apartment 

in Belgorod, Russia was worth over $2,000, the statutory resource limit. 20 C.F.R. 

§ 416.202(d). The Administrative Law Judge (ALJ) based this finding on Fokina’s 

August 14, 2012 signed statement, given under penalty of perjury, which said:

I UNDERSTAND THAT MY RESOURCE LIMIT IS $2,000.00 AND 

THAT IF MY RESOURCES EXCEED THIS AMOUNT I WILL BE 

INELIGIBLE.

8/15/12 MY HUSBAND GAVE ME THE APARTMENT 138 ABOUT 

10 YEARS AGO. I BELIEVE IT IS WORTH ABOUT 20,000.00 U.S. 

DOLLARS. NO ONE IS LIVING THERE. MY BROTHER 

WATCHES OVER THE APARTMENT.

That statement constitutes substantial evidence. POMS SI 01140.100.G.1 

(stating that “the claimant[’s] . . . allegation of the property’s value” is the primary 

method of determining value of non-home real property). Fokina’s argument that 

her statement was an “off-the-top” response is belied by the formality of the signed

declaration.

Fokina also claims that the ALJ did not consider the costs of preparing the 

apartment to be sold. But Fokina proffered no evidence to that effect, as to which 
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she bore the burden of producing. “An ALJ’s duty to develop the record further is 

triggered only when there is ambiguous evidence or when the record is inadequate 

to allow for proper evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453, 

459-60 (9th Cir. 2001). There was nothing ambiguous about Fokina’s plain 

statement that her apartment was “worth about $20,000,” ten times the statutory 

resource limit.1

2. Substantial evidence supports the determination that Fokina’s ex-husband 

did not present a legal barrier to sale. The SSA does not “require an individual to 

undertake litigation in order to accomplish sale” when there is a “legal bar to sale 

of property.” POMS SI 01120.010.C.2. But unlike the cases cited by Fokina—

Kubetin v. Astrue, 637 F. Supp. 2d 59 (D. Mass. 2009), and Winston v. Colvin, No. 

6:13-CV-1662-CL, 2015 WL 1549164 (D. Or. Apr. 7, 2015)—Fokina failed to 

show that litigation would be required to sell her property. In fact, the contract 

 

1 The dissent manufactures ambiguity by discovering the inventory value of the 

apartment mentioned in the record. Aside from the fact that there is no evidence 

that the inventory value bears any relation to market value, this argument is clearly 

waived. If waiver means anything, it means that we cannot raise claims sua sponte 

and then use them to resolve disputes. The purpose of barring arguments waived is 

to guarantee that parties “have the opportunity to present whatever legal arguments 

[they] may have” and ensure that “litigants [are] not surprised on appeal by [the] 

final decision.” Hormel v. Helvering, 312 U.S. 552, 556-57 (1941). The parties

would surely be surprised if we decided this case on a claim that neither party 

argued or briefed at any stage of the proceeding.
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produced at the hearing stated that Fokina’s ex-husband transferred his legal rights 

to her in July, 1998.

3. Substantial evidence supports the determination that Fokina was not 

prevented from selling the apartment by circumstances beyond her control. Fokina 

argues that she would need to be physically present in Russia for the sale. Aside 

from her own assertions, however, she presented no evidence at the hearing to 

support that claim. And the ALJ found that she had executed several legal 

arrangements from the United States: obtaining a divorce decree in 2011, obtaining 

a copy of her divorce certificate in 2012, and executing permanent resident status 

in 2013. As before, Fokina’s claim runs aground on the lack of contrary evidence 

in the record.

Even if that finding were in error, substantial evidence supports the ALJ’s 

determination that Fokina could return to Russia to sell the apartment. Fokina 

claims that past persecution prevents her return. But in addition to finding that 

Fokina’s status as a refugee was related to events in Tajikistan, not Russia, the ALJ 

also found that Fokina held a Russian passport with no travel restrictions. “Where 

evidence is susceptible to more than one rational interpretation, it is the ALJ’s 

conclusion that must be upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 
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2005) (citation omitted). Based on this evidence, it was not irrational to conclude 

that Fokina could return to Russia to sell the apartment.

AFFIRMED.
Fokina v. Berryhill, No. 17-35858 

PAEZ, Circuit Judge, dissenting:

I disagree with my colleagues that substantial evidence supports the 

Administrative Law Judge’s (“ALJ”) determination that Fokina’s apartment in 

Belgorod, Russia was worth more than the statutory resource limit. I respectfully 

dissent.

Substantial evidence does not support the determination by the ALJ that the 

value of the apartment exceeded the resource limit because the evidence is 

inconsistent. The ALJ relied upon Fokina’s statement that the apartment is worth

$20,000, but disregarded, without explanation, other evidence about the value of 

the apartment. The contract transferring the property to Fokina, which the ALJ 

heavily relied upon to determine property ownership, values the apartment at 

21,368 rubles—not dollars. The ALJ erred in relying upon the contract to 

determine ownership but ignoring the valuation in it. See Gordon v. Sec’y of 

Health & Human Servs., 803 F.2d 1071, 1073 (9th Cir. 1986) (reversing in part a 

determination of ineligibility based on resources and remanding because neither 

the district court nor the agency considered certain evidence). The ALJ further 

FILED

DEC 24 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
erred by failing to consider the rubles to dollars exchange rate.1

 See POMS SI 

01140.100.J.2. 

The ALJ had both a heightened duty to develop the record and a 

responsibility to resolve inconsistent evidence. The ALJ must develop the record 

“fully and fairly” in disability benefits cases. Mayes v. Massanari, 276 F.3d 453, 

459 (9th Cir. 2001). This includes resolving inconsistencies. See Lamear v. 

Berryhill, 865 F.3d 1201, 1206 (9th Cir. 2017). The ALJ bears a heightened duty 

to develop the record “when the record is inadequate to allow for proper evaluation 

of the evidence,” Mayes, 276 F.3d at 459–60, and “where the claimant may be 

mentally ill and thus unable to protect her own interests,” Tonapetyan v. Halter, 

242 F.3d 1144, 1150 (9th Cir. 2001). When a claimant is unrepresented, “the ALJ 

must be especially diligent in exploring for all the relevant facts.” Id. All of the 

circumstances calling for a heightened duty to develop the record were present 

here: the record contains conflicting evidence about the value of the apartment; 

Fokina is mentally ill; and, at the hearing before the ALJ, Fokina was without 

licensed counsel. Yet the ALJ did nothing to resolve the inconsistency and did not 

even ask about the value of the apartment at the hearing. 

 1 I note that the exchange rate as of September 30, 2018 was 65.7750 Russian 

rubles to 1 United States dollar. Current Rates: Treasury Reporting Rates of 

Exchange as of September 30, 2018, DEP’T OF THE TREASURY, BUREAU OF THE 

FISCAL SERVICE (Nov. 29, 2018), https://www.fiscal.treasury.gov/reportsstatements/treasury-reporting-rates-exchange/current.html.
 Finally, contrary to the Commissioner’s objection, Fokina did not forfeit 

her argument that the ALJ failed to develop the record. “Once ‘an issue or claim is 

properly before the court, the court is not limited to the particular legal theories 

advanced by the parties.’” Thompson v. Runnels, 705 F.3d 1089, 1098 (9th Cir. 

2013) (quoting Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991)). 

Fokina raised the issue of whether substantial evidence supported the ALJ’s 

finding of excess resources. The value of the apartment is inherently part of that 

issue.

For these reasons, I would reverse the district court and direct the district

court to remand this case to the ALJ for further development of the record with 

respect to the value of the apartment.